The European Court of Justice ruling requiring Google to 'hide’ stories shows
the need to defend digital freedom of speech

Seven years ago, Stan O’Neal was ousted as chairman of Merrill Lynch. He had forced the bank to become more shark-like in its behaviour, and succeeded – to the extent that it almost collapsed due to sub-prime loans. “Merrill’s mess” ran a BBC online headline after his departure. “Wave after wave of schadenfreude had been crashing” on his head, it said. Not the most elegant metaphor, perhaps, but a relatively mild verdict, given the circumstances. In the past few weeks, however, someone has complained and Google has emailed the BBC to say that the offending story would be removed from its search engines. The great digital redaction has begun.

It is two months now since the European Court of Justice (ECJ) ruled that Google should heed those seeking the “right to be forgotten” and hide embarrassing stories from search engine results. The idea was to help ordinary people escape their past, especially if caught in compromising situations. Yet, as you might expect, things have evolved to the extent that a Google search for “Stan O’Neal” and “incompetent banker” yields the statement that some results may have been “removed under data protection law in Europe”.

This all started with Mario Costeja González, a Spaniard who was rather ashamed that anyone searching his name online could find that he had been forced to sell his house in order to settle debts some years ago. It was a small, three-sentence story; he asked Google to remove it and they declined. As he was a lawyer, he decided to sue, and his case went all the way to Luxembourg. His victory was a coup for the new breed of would-be digital censors. An important principle has been conceded: government now has the power to redact. The abuse has started already.

A politician who had been caught fiddling his expenses has applied to Google, asking for links to the story to vanish. An actor has been in touch, keen to cover up his affair with a teenager. Google has also heard from a company anxious to cover up any online discussion pertaining to its ripping off customers. In theory, anyone can request the removal of stories from search engines if these are deemed “inadequate, irrelevant or no longer relevant”. These are conditions vague enough to have encouraged 70,000 requests so far.

Each time Google decides to contest a request, it will have to spend time and money. Far quicker (and cheaper) to agree, and take down the link – to be on the safe side. Perhaps this is what happened with the BBC report: the complaint seems to have come not from the deposed Merrill Lynch chairman, but a reader who left a daft comment underneath the story and was embarrassed to find his words showed up whenever anyone searched for his name. Part of the problem is the lack of due process: newspapers are not being told why the links to stories are vanishing, or who has complained. It seems the search engine is acting as judge and jury.

Google loathes all of this. It hates having to email newspapers to give them the bad news, and hates taking part in a form of censorship mandated by European authorities. Its only consolation is that the EU has no power over searches made on google.com – but the vast majority of Brits use the default website (google.co.uk). They’ll be seeing redacted results. Meanwhile, companies are popping up offering the rich and powerful the chance to “control” their “online reputation”.

There are, of course, some good reasons to do so. Who would begrudge a young adult seeking to escape the legal, but embarrassing misdeeds of their past? A friend of mine found herself applying for jobs knowing that a cursory internet search for her name would show her smoking a large joint of marijuana. Eric Schmidt, Google’s chairman, once suggested that 18-year-olds should change their names so they couldn’t be linked to earlier debauches. The ECJ can say it has changed the law so that people don’t have to.

But this is the problem with censorship. If you allow it in the name of a good cause, it will soon be used for a bad one. Google has removed links to a Telegraph story about Dougie McDonald, a former Scottish Premier League goalkeeper who was found to have lied about his reasons for granting a penalty to Celtic. Even photographs seem to be targeted. Links to images used by telegraph.co.uk to illustrate stories detailing Max Mosley’s old court case against the News of the World would appear to have vanished from Google.

Mr Mosley, of course, has spent the past few years in an unsuccessful campaign to have newspapers regulated in the wake of the Leveson Inquiry. He failed because his campaign contradicted a 300-year-old principle that British newspapers stand free of any government interference. But those who failed to regulate the printed word are having better luck with digital. Take tax: VAT is not charged on books and newspapers due to the principle that Britain doesn’t tax knowledge. But buy an eBook, or a digital edition of a newspaper, and the government slaps on 20 per cent.

Speech doesn’t look as free as it once was, if it is made digitally. Make a joke about blowing up Sheffield Airport on Twitter and you can end up in court, as the 28-year-old Paul Chambers found out. A teenager from Canterbury who posted a picture of a burning poppy on his Facebook page on Armistice Day was visited by the police, as if the very thought was a crime. The digital era may yet end up narrowing, rather than expanding, the parameters of free speech. What’s happening to Google is a part in this trend.

As a global giant with a gift for minimising its tax liability, Google is an unlovable company – but its power makes politicians drool. If they can have any control over it, even in the name of blocking pornography, we can expect that power to be ratcheted up in the future. As newspapers (and readers) move from print to digital, they will find the Government waiting online, with far tighter rules over what to say, and what to hide.

This, of course, is not the British way. David Cameron has made clear that he is troubled by the ECJ ruling over Google, and some of his ministers think it could be overturned under the European Convention on Human Rights. But they can do more. Chris Grayling, the Justice Secretary, is preparing a Bill of Rights which would be part of the next Tory manifesto and he is considering, as part of that, whether to redefine freedom of speech for the digital era. It is an extraordinary opportunity.

The model is obvious. No judges are telling search engines what to do in America, as the First Amendment of the Constitution guarantees freedom of speech, and protection from all such interference. Britain has not needed similar guarantees as press freedom has been hardwired into our culture for years – but the digital era means that such discussions need to start anew. Google should be thought of as part of the press, and given protection not for its own sake, but for ours. When government and media are kept firmly apart, everyone benefits.

Google said yesterday that “this is a new and evolving process for us” – the same is true for everyone. The media is going through an industrial revolution, and Google must be considered part of that. The would-be censors see the chance to strike, and questions we had thought settled need to be discussed anew. It is time to agree what freedom of the press means in a digital era – and how Britain, the country that invented the idea of liberty, can keep its flame burning here. Grayling’s Bill of Rights has come along at precisely the right time.